1. This second appeal has been filed by the first defendant against the concurrent findings of the Trial Court and the First Appellate Court.

2. The 1st respondent is the plaintiff and the appellant is the first defendant / contesting defendant. The suit was filed by the plaintiff for declaration of his title to the suit property and for mandatory injunction to direct the first defendant to remove the encroachment and to restore the fence as it stood before. The case of the plaintiff is that he is the owner of property in S.No118 and S.No.119 is a government Poramboke land used for accessing the well and public burial ground. S.No.118 is situated to the North of S.No.119 and is divided by a fence. The further case of the plaintiff is that though the property in S.No 119 is a government poramboke Road, the same is under the occupation of the first defendant, who encroached a portion of the plaintiff's property in S.No.118 under the guise of occupying S.No 119. The suit was resisted by the first defendant mainly on the ground that the suit is barred by the principle of constructive res judicata under Section 11 of C.P.C as the issue substantially involved in the suit has already been decided in his favour in O.S No.135 of 1997. Though he had also raised the plea of limitation, no issues were framed to decide the same either by the Trial Court or by the First Appellate Court. An advocate commissioner was appointed, who with the help of the surveyor measured the boundary line in S.Nos.118 and 119. Based on the report and evidences, the suit was decreed. The decree of the Trial Court was affirmed by the first appellate court. Aggrieved the first defendant has filed this appeal.

3. The following substantial questions of law were framed by this court at the time of admitting the second appeal.

a) Whether the suit is barred by the principle of constructive res judicata ?

b) Whether the suit for mandatory injunction filed on 29.01.2001 in respect of the property said to have been encroached on 20.08.1997 is barred under the provisions of the Limitation Act?

4. The learned counsel appearing for the appellant/first defendant painstakingly contended that both the trial court as well as the first appellate court erred in overlooking the fact that the suit was barred by the principles of constructive res-judicata. The learned counsel contended that the first defendant had earlier filed a suit in O.S No.135 of 1997 against the plaintiff for permanent injunction contending that the first defendant was in occupation of S.No.119, a government poramboke land abutting his property by putting up pucca construction and fence; that S.No.119 is located to the south of S.No.118, the property of the plaintiff; that a fence seperates both the properties and the plaintiff attempted to remove the fence on 24.08.1997 and to protect his rights and interest, the first defendant had filed O.S.No.135 of 1997 for permanent injunction. The fence was shown as ‘AB’ in the earlier plaint. In the present suit, the very same fence is shown as ‘PO’. The suit after the full fledged trial was decreed and the appeal filed by the plaintiff was also dismissed. To overcome the decree, the present suit under the guise of declaration relief has been filed. The learned counsel further contended that though in the present suit, declaration is sought, the real and substantial issue involved is the boundary fence separating S.Nos.118 and 119. In the present suit the plaintiff has projected a picture as if the fence is located well within S.No.118 and that the first defendant has encroached the property on 20.08.1997. The learned counsel further contended that the plaintiff never took a stand in O.S No.135 of 1997 that the first defendant has encroached a portion of the suit property on 20.08.1997. The learned counsel further contended that both the courts failed to consider the objections to the report of the advocate commissioner. The learned counsel also contended that even